Citation Nr: 1021164
Decision Date: 06/08/10 Archive Date: 06/21/10
DOCKET NO. 06-00 754 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Baltimore, Maryland
THE ISSUES
1. Entitlement to an increase in the 30 percent evaluation
currently assigned for urolithiasis.
2. Entitlement to a total rating for compensation purposes
based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The Veteran and her friend
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The Veteran had active service from February 1980 to June
1980, and from September 1980 to July 1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2003 decision by the RO
which, in part, denied an increase rating for the Veteran's
urolithiasis and TDIU. A videoconference hearing before the
undersigned was held in August 2007. The Board, in part,
remanded the issues currently on appeal for additional
development in December 2007.
FINDINGS OF FACT
1. All evidence necessary for adjudication of this claim
have been obtained by VA.
2. The Veteran's renal disorder is manifested primarily by
right flank pain, a non obstructing, 4-mm. stone, and
nocturia three times a night, without constant albuminuria,
persistent edema or any renal dysfunction.
3. The Veteran's service-connected disabilities include
urolithiasis and hysterectomy; each rated 30 percent
disabling, degenerative disc disease of the lumbar spine;
rated 20 percent disabling, deviated nasal septum,
hypothyroidism, pyelonephritis with stenosis, and
degenerative disc disease of the cervical spine, each rated
10 percent disabling, and cholecystectomy, rated
noncompensably disabling. The combined rating is 70 percent.
4. The Veteran has one year of college education with
additional training as a nurse assistant, and has
occupational experience as a clerk and substitute teacher;
the Veteran reportedly last worked in June 2001.
5. The Veteran's service-connected disabilities are not
shown to preclude her from securing and following
substantially gainful employment.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 30 percent
for urolithiasis have not been met. 38 U.S.C.A. §§ 1155,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159,
4.3, 4.115, including Part 4, Diagnostic Codes 7508-7509
(2009).
2. The criteria for a total disability rating based on
individual unemployability due to service-connected
disabilities have not been met. 38 U.S.C.A. §§ 1155, 5103A,
5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321,
3.340, 3.341, 4.3, 4.16 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Under the Veterans Claims Assistance Act (VCAA), when VA
receives a complete or substantially complete application for
benefits, it must notify the claimant of the information and
evidence not of record that is necessary to substantiate a
claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 C.F.R. § 3.159 (2009); see also Dingess/Hartman
v. Nicholson, 19 Vet. App. 473 (2006). Such notice must
include notice that a disability rating and an effective date
for the award of benefits will be assigned if there is a
favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159,
3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-
21 (2004) (Pelegrini II).
Prior to initial adjudication of the Veteran's claims,
letters dated in December 2002 and May 2003, fully satisfied
the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103;
38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002).
With respect to the duty to assist in this case, the
Veteran's service treatment records and all VA and private
medical records identified by her and which she authorized to
be obtained, have been associated with the claims file. The
Veteran was examined by VA on at least three occasions during
the pendency of the appeal, and testified before the
undersigned at a hearing in August 2007. Based on a review
of the claims file, the Board finds that there is no
indication in the record that any additional evidence
relevant to the issues to be decided herein is available and
not part of the claims file. See Mayfield v. Nicholson, 499
F.3d 1317 (Fed. Cir. 2007).
Increased Rating - In General
In general, when an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). When the appeal arises from an initial assigned
rating, consideration must be given to whether staged ratings
should be assigned to reflect entitlement to a higher rating
at any point during the pendency of the claim. Fenderson v.
West, 12 Vet. App. 119 (1999). However, staged ratings are
also appropriate in any increased-rating claim in which
distinct time periods with different ratable symptoms can be
identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.
The percentage ratings in VA's Schedule for Rating
Disabilities (Schedule) represent as far as can practicably
be determined the average impairment in earning capacity
resulting from such disabilities and their residual
conditions in civil occupations. 38 C.F.R. § 4.1 (2009).
The Veteran service-connected urolithiasis is rated 30
percent disabling under DCs 7508-7509, as nephrolithiasis and
hydronephrosis. This 30 percent rating is the highest rating
available under each code. DC 7509, however, provides for
rating as renal dysfunction for severe hydronephrosis. Under
38 C.F.R. § 4.115b, a 60 percent evaluation is warranted for
renal dysfunction when there is constant albuminuria with
some edema; or, definite decrease in kidney function; or,
hypertension at least 40 percent disabling under Diagnostic
Code 7101. An 80 percent evaluation is for application when
there is persistent edema and albuminuria with BUN 40 to 80
mg%; or, creatinine 4 to 8 mg%; or, generalized poor health
characterized by lethargy, weakness, anorexia, weight loss,
or limitation of exertion. A maximum 100 percent evaluation
is for application when renal dysfunction requires dialysis
or precludes more than sedentary activity from one of the
following: persistent edema and albuminuria; or BUN more than
80 mg%; or, creatinine more than 8 mg%; or, markedly
decreased function of kidney or other organs, especially
cardiovascular.
Initially, it should be noted that the Board has reviewed all
the evidence of record, including but not limited to the
Veteran's contentions, particularly those stated at the
hearing before the undersigned in August 2007; the VA and
private treatment records from 2003 to 2008, and the findings
from the VA examinations conducted during the pendency of
this appeal. Although the Board has an obligation to provide
adequate reasons and bases supporting its decision, it is not
required to discuss each and every piece of evidence in a
case. The relevant evidence including that submitted by the
Veteran will be summarized where appropriate.
While the Veteran is competent to offer evidence as to the
visible symptoms or manifestations of a disease or
disability, her belief as to its current severity under
pertinent rating criteria or the nature of the service-
connected pathology is not probative evidence. Only someone
qualified by knowledge, training, expertise, skill, or
education, which the Veteran is not shown by the record to
possess, may provide evidence requiring medical knowledge.
Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v.
Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992).
Most of the medical reports of record during the pendency of
this appeal pertained to treatment for the Veteran's now,
service-connected low back disability. While some of the
reports noted a history recurrent nephrolithiasis, the only
objective evidence of a renal problem was a 3 to 4-mm., non-
obstructing stone in the mid to lower pole of the right
kidney. Multiple diagnostic studies, including CT and
ultrasound scans from July 2003 to 2006 showed the non-
obstructive stone with no evidence of hydronephrosis or
ureteral calculi. The Veteran underwent cystoscopy and right
retrograde ureteropyelogram with stent placement at a private
hospital in May 2006. The operative report showed no tumors,
stones or diverticula in the bladder, and no filling defects
or obstruction of the ureter.
When examined by VA in January 2008, the examiner indicated
that the claims file was reviewed and included a detailed
description of the Veteran's complaints and medical history.
The examiner noted that the Veteran had a small stone in the
right kidney with no hydronephrosis in 2000, and was shown to
have a 4-mm calculus in the upper pole of the right kidney
with a mild calycectasis on VA CT scan in June 2007. The
examiner indicated that the Veteran did not have any renal
dysfunction, and that her blood urea nitrogen and creatinine
were normal. The Veteran reported urinary frequency every
two to three hours during the day and nocturia three times a
night with urge incontinence and occasional stress
incontinence. The examiner indicated that he could not
determine how many pads she used, if at all, as it was
difficult to get any direct answers from the Veteran.
On examination, there was some slight right flank tenderness
and a well-healed surgical scar. A CT scan revealed a 5-mm
calculus in the right interpolar region, medially, near the
right renal pelvis, stable in appearance since the study in
February 2006. There was no associated hydronephrosis. The
examiner commented that the Veteran's only residual of her
genitourinary disease was basically a non obstructing stone
in the right kidney.
VA outpatient notes showed that the Veteran was seen for
right lower quadrant abdominal and right lower back pain
radiating into both legs a few days after the VA examination.
A treatment note by VA urology services in January 2008,
indicated that the Veteran was informed that the right renal
calculus was not the cause of her discomfort and that only if
the stone dropped into her ureter would she need a ureteral
stent. The Veteran acknowledged that she understood and
indicated that she would return if true renal colic ensued.
After a review of the evidence of record, the Board concludes
that an evaluation in excess of 30 percent for the Veteran's
renal disorder is not warranted. As previously indicated,
the Veteran is currently assigned the maximum rating
permissible under DC 7508 for nephrolithiasis. Thus, an
evaluation greater than 30 percent is not possible under that
diagnostic code. However, DC 7509 also provides that severe
hydronephrosis is to be rated as renal dysfunction, which
does provide for evaluations in excess of 30 percent. In
this regard, however, the evidence of record does not show
hydronephrosis, renal dysfunction with constant albuminuria
and edema, a decrease in kidney function, or hypertension
with diastolic blood pressure predominantly of 120 or more.
Thus, an evaluation greater than 30 percent is not warranted
for the Veteran's kidney disorder under 38 C.F.R. § 4.115b.
The objective assessment of the Veteran's present impairment
of the kidney's does not suggest that she has sufficient
symptoms so as to warrant an evaluation in excess of the 30
percent evaluation currently assigned at any time during the
pendency of this appeal. Fenderson v. West, 12 Vet. App. 119
(1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).
Finally, there is no credible evidence that the
manifestations of the Veteran's kidney disorder are unusual
or exceptional as to demonstrate that the rating schedule is
inadequate for determining the proper levels of disability.
While the Veteran has a renal stone in the right kidney, and
was hospitalized once during the pendency of the appeal for
stent placement, there has been no evidence of hydronephrosis
or any renal dysfunction at anytime during the pendency of
this appeal, including during the one year period prior to
receipt of her claim for increase. Further, there is no
objective evidence of marked interference with employment due
solely to her renal disorder. In this case, the
manifestations of the Veteran's urolithiasis are consistent
with the schedular criteria, and there is no objective
evidence that the manifestations of her disability are
unusual or exceptional. Therefore, the Board finds that the
criteria for submission for an extraschedular rating pursuant
to 38 C.F.R. § 3.321(b)(1) are not met. See also Thun v.
Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet.
App. 242 (2008).
TDIU
Under the applicable criteria, total disability ratings for
compensation based upon individual unemployability may be
assigned where the schedular rating is less than total, when
it is found that the disabled person is unable to secure or
follow a substantially gainful occupation as a result of a
single service-connected disability ratable at 60 percent or
more, or as a result of two or more disabilities, provided at
least one disability is ratable at 40 percent or more and
there is sufficient additional service-connected disability
to bring the combined rating to 70 percent or more.
38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2009).
By considering her urolithiasis and pyelonephritis as
effecting a single bodily system, the Veteran meets the
schedular criteria for TDIU. The Veteran's service-connected
disabilities include urolithiasis and hysterectomy; each
rated 30 percent disabling, degenerative disc disease of the
lumbar spine; rated 20 percent disabling, deviated nasal
septum, hypothyroidism, pyelonephritis with stenosis, and
degenerative disc disease of the cervical spine, each rated
10 percent disabling, and cholecystectomy, rated
noncompensably disabling. Her combined disability rating is
70 percent.
Moreover, regardless of the combined evaluation, when a
Veteran is unable to secure and follow a substantially
gainful occupation by reason of service-connected
disabilities, that person shall be rated totally disabled.
38 C.F.R. § 4.16(b).
With respect to the Veteran's disabilities, on VA spine
examination in January 2008, the Veteran had good range of
motion of the cervical and lumbosacral spine with forward
flexion to 40 and 60 degrees, respectively. The Veteran
walked briskly without an assistive device and was able to
perform routine activities, such as, dressing and undressing
and getting on and off the examining table, without
difficulty. There was no evidence of pain on motion of the
cervical or lumbosacral spine and no additional range of
motion loss with repetitive movement. Strength and motor
function was normal and there was no evidence of muscle spasm
or any significant neurological impairment associated with
the cervical or lumbosacral spine disabilities.
Similarly, there has been no evidence of hydronephrosis or
any renal dysfunction associated with the Veteran's
urolithiasis at anytime during the pendency of this appeal,
and no evidence of any significant residuals associated with
her other service connected disabilities. After examination
of the Veteran and review of the claims file, VA examiners in
January 2008 indicated that there were no active symptoms of
hypothyroidism and that her cholecystectomy had no bearing on
her activities of daily living or functioning. Likewise, her
deviated septum was not considered to render her unable to
secure and follow gainful employment and it was found her
hysterectomy also would not interfere with employment.
Indeed, it was noted she was attending school to become a
certified nurse assistant.
While the Board does not dispute that the Veteran experiences
some impairment due to her service-connected disabilities,
the degree of impairment is adequately reflected by the
current combined schedular rating of 70 percent. See Van
Hoose v. Brown, 4 Vet. App. 361 (1993). However, the
Veteran's service-connected disabilities have not been so
severely disabling as to have rendered her or the average
person similarly situated unable to secure or follow
substantially gainful employment, nor does the evidence of
record reflect that her service-connected disabilities would
render her individually unable to follow any substantially
gainful occupation.
Accordingly, the Board finds that the evidence does not
demonstrate that the Veteran's service-connected
disabilities, alone, renders her unable to secure or follow a
substantially gainful employment.
ORDER
An evaluation in excess of 30 percent for urolithiasis is
denied.
Entitlement to TDIU is denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs